Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to getting, varying, or terminating child support in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to helping you get, vary, or terminate child support.

This is the first of a series of blog posts I’ll be writing about family law in Ontario.  In this blog, I’ll be discussing something vary basic: child support obligations in Ontario.

A common question people sometimes ask: if I never get married but have a child with someone, do I still owe them child support?  Well, the Ontario Family Law Act doesn’t care if you, as the child’s father or mother, is married.  Nor does the Act care if you’re common law.  All that matters is that the payor is the child’s parent.

Basic Obligation of Parent to Pay Child Support
O.k., so when does a parent have to pay child support in Ontario?  Basically, there are two situations under s. 31(1) of the Act which require a parent to pay child support.  Here’s what that section says:

Obligation of parent to support child

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

So by reading this section, it becomes clear: every parent has an obligation to provide support for his or her unmarried child who is (1) a minor or (2) enrolled in a full time program of education.  There is an exception to these two tests and that is set out in section 31(2), which states that the obligation under s. 31(1) does not extend to a child who is 16 years old (or older) and who has withdrawn from parental control.  What exactly is meant by “parental control” will be discussed in the next blog.

First Branch: Minor
Under the first branch, the first question to ask is: who is considered a “minor” in Ontario?  The Age of Majority and Accountability Act states that: “Every person attains the age of majority and ceases to be a minor on attaining the age of eighteen years” [s. 1].  Remember: this liability is limited by the parent’s capability of paying child support [s. 31(1)].  This liability is further restricted if child, assuming he or she is over 16 years old, has withdrawn from parental control [s. 31(2)].

Second Branch: Attending School Full Time
Even if a parent’s child is over the age of 16 (indeed, there doesn’t appear to be any upward limit here), a parent may still be liable to pay child support if the child is “an unmarried child who…is enrolled in a full time program of education”.  This is the second branch.  Once again: this liability is limited by the parent’s capability of paying child support [s. 31(1)].  This liability is further restricted if child, assuming he or she is over 16 years old, has withdrawn from parental control [s. 31(2)].

Caselaw
So how have Ontario courts interpreted these sections of the Act dealing with the obligation of a parent to support a child?

In Giess v. Upper (1996), 28 R.F.L. (4th) 46, Mendes da Costa J. of the Ontario Court of Justice – General Division wrote the following about the support obligation created by s. 31(1) of the Act in the context of that case:

16 The support obligation created by section 31(1) is two-fold. First, it applies to an “unmarried child who is a minor”. While the child, Elizabeth, is unmarried, she was born on October 22nd, 1977, and is now 19 years of age. As she is no longer a “minor”, she does not qualify for support under this limb of the subsection. Secondly, the support obligation extends to a child who is “enrolled in a full time program of education”. With regard to this extension of the support obligation, the word “child” is used as a term of relationship, and does not imply any limitation as to age.

In that case, the 19 year old child was found to be enrolled in a full time program of education. Mendes da Costa J. explained that the word “enrolled” meant that the child’s participation had to be meaningful: “it must be of such a nature and equality as to be consistent with the program’s purposes and objectives”. The father was found to have an obligation to provide child support under the second branch of s. 31(1) of the Act – subject to whether the child had “withdrawn from parental control”.

In McCann v McCann, the Ontario Court of Justice – General Division rejected the argument that if a child stopped being enrolled in a full-time program of education and ceased to be eligible for any child support, then their eligibility forever ceased and could not be resurrected by a subsequent enrollment in school in a full-time program of education. As per Aston J.:

24 Christopher McCann is now an “unmarried child” who is enrolled in a full-time program of education. I cannot conceive of any reason in logic or equity why it should matter that he has not been continuously enrolled in a full-time program of education since attaining the age of 18. The word “continuously” does not appear in the wording of subsection 31(1) of the Family Law Act.

25 There is a discretion in the court to deny support to an adult child who has left a full-time program of education and then resumed such a program but a gap in an ongoing program of education does not, in my view, automatically disqualify an applicant child from seeking support.

In McNulty v. McNulty, [2006] W.D.F.L. 434, Howden J. of the Ontario Superior Court of Justice observed:

10 The obligation to pay support for a child has not been applied by the court on a standard of perfection (or near-perfection) in attendance or in achievement by marks. The requirement of section 31(1), for the child who has reached 18 years of age and is no longer a minor, is that that “child” be enrolled in a full-time program. That has been applied to mean participation in the educational program in which he/she is enrolled in a meaningful way.  Giess v. Upper, (1996) 28 R.F.L. (4th) 460 (Ont. Gen Div).  In Copeland v. Copeland, (Ont. Gen. Div. (unreported Dec. 9/92, noted in Ontario Family Law Practice 2006, by C. Perkins, D. Steinberg and E. Lonkingly (sp?), p. 696), it was determined that a court should not impose a standard of devotion, priority and effort on a child as a condition of continuing a claim for support. In another case, that of a daughter over 18 years of age who completed high school but did not attend school for a year, the court held that the parent’s support obligation had not ended. Huneault J. held:

11 The purpose of the obligation to provide support extending into a child’s adult years is to reinforce parental responsibility for the education of their children beyond the age of majority. Reading this section as a whole, the legislative intent of parental support is to provide and continue to provide support for a child who is pursuing an educational program and remains dependant on the parent while he/she has not completed their education…

…

13 …The requirement of enrolment in a full-time course of education does not contemplate mere enrolment of the student to operate as a continuing trigger for support payments without some participation by the “child” in the program. Barring special circumstances (such as Tiara’s pregnancy, giving birth and maternal duties in her newborn’s first year), the “child” of 18 years or more owes a duty of due diligence to participate meaningfully in the educational program (interpreted in a contextual understanding, and purposive way) under section 31 of the Act.  Figueiredo v. Figueiredo (1991), 33 R.F.L. (3d) 72 (Ont. Gen. Div.), following Giess v. Upper.

Finally, in Simpson v. Hart, 1998 CarswellOnt 5163, Dunbar J. of the Ontario Court of Justice – General Division noted that: “The law is clear that a child who is independent may re-qualify for support from a parent by recommencing school and thus becoming dependent once more on the parents”.

written by admin \\ tags: child support in ontario, child support obligations, common law, educational purposes, family law act, family law in ontario, family law lawyers, full time, information advice, legal advice, obligation, ontario family law, ontario family law act, ottawa, professional assistance, section 31, unmarried child

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to getting a child custody order in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to helping you get child custody.

It’s a tough situation: you want to split up from your common law or married spouse and take your child with you.  But you don’t have the permission of your spouse.  Now they’re saying that they’ll call the police and report an abduction if you suddenly leave with your child.  Is that true?  What are your options?

Starting Position: Parents have equal rights
Well, you need to start off by looking at the Children’s Law Reform Act.  Section 20(1) says:

Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.

So if a spouse is planning to just get up and leave with their child, they will be infringing on the other spouse’s equal entitlement to custody.  Here, “custody” means having legal care and control of the child.   The spouse that take their child could face family law and criminal sanctions (e.g. charged with abduction).  There are defences which they could raise, however, which are outlined in the Criminal Code provisions repeated below.

Court Order or Separation Agreement
So how do you get around the “equal rights” starting position?  Well, s. 20(7) of that Act says:

Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement.

So, if there is a valid separation agreement or court order dealing with custody and access, then a spouse would be entitled to take their child as per the terms of that agreement or order.

Separation Agreement
The terms of a valid separation agreement can deal with custody and access issues of children.  For example, a term could say that the husband will have custody of the children and the wife will have access to include overnight, weekend, and extended holiday visits.  Alternatively, a term could say that the husband and wife will have joint custody of the children (e.g. the children will reside with the husband but will be in the custody of the wife as follows….).  The terms of your separation agreement to satisfy both parties’ interests in light of the best interests of the children.

Court Order
If you don’t have or can’t get a separation agreement with your spouse that addresses custody and access issues, you will need to apply to the court (using Form 8).  The person making the application is called the “Applicant” and your spouse will be the “Respondent”.  As per the Superior Court of Justice – Family Court – Fees Regulation, there is no filing fee on an application seeking custody, access, or support made under the Children’s Law Reform Act.  There also doesn’t appear to be any fees payable if the proceeding is in the Ontario Court of Justice.  For more information about family law procedures in the Ontario Court of Justice, check out this Guide by the Ministry of the Attorney General.  For more information about family law procedures in the Superior Court of Justice, check out this Guide by the Ministry of the Attorney General.

Criminal Sanctions
Without a separation agreement or court order to the contrary, a spouse can be charged with abduction by simply taking their children and leaving the other spouse.  Here are the relevant sections of the Criminal Code dealing with the offence of abduction (very serious stuff) and the possible defences.  Remember: if you are contemplating getting a separation agreement or applying to the court for custody and access, you can make a post on Dynamic Lawyers (100% free and anonymous) where family law lawyers can advise and represent you:

Abduction

283. (1) Every one who, being the parent, guardian or person having the lawful care or charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbours that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

(b) an offence punishable on summary conviction.

(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose.

284. No one shall be found guilty of an offence under sections 281 to 283 if he establishes that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of that young person.

285. No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm.

286. In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused.

written by admin \\ tags: alteration, common law, criminal sanctions, educational purposes, family law lawyers, information advice, ontario family law, professional assistance, separation agreement

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a mistake in a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

A Will is only valid if the Testator knew and approved its content.  If words have been mistakenly inserted into a Will without such knowledge or approval, then a court may strike out those specific passages or phrases.  In Barylak v. Figol, 9 E.T.R. (2d) 305, for example, a residuary clause had been inserted by mistake.  That clause gave the residue of the deceased’s estate to a fund to create a scholarship for needy students of Ukrainian origin. The Testator never gave his solicitor instructions to include that offending residuary clause. There was no evidence that the Will was ever sent to the Testator prior to its execution for review by him. Even if it had been, there was no evidence as to whether the Testator’s command of written English was such that he would have fully understood it. Also, there was no evidence that a true copy of the executed Will was left with the testator or that a copy was sent to him. Overall, the Ontario Court of Justice (General Division) held that the Testator knew nothing about the residuary clause and that it did not reflect his expression. Accordingly, the Court deleted the clause from his Will based on the doctrine of mistake.

written by admin \\ tags: brampton, court of justice, educational purposes, legal advice, mississauga, needy students, ontario court of justice, ontario lawyers, ottawa, passages, professional assistance, residuary clause, solicitor, testator, true copy, ukrainian origin, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice as a dependent, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you in this regard.

What if you have been inadequately provided for in someone’s Will?  Well, if you’re a dependent in Ontario, you might have some legislative recourse.

Section 58(1) of the Succession Law Reform Act allows a deceased’s dependents to apply to the court for support where the deceased (either through a Will or absent one) has not made adequate provision for their proper support.  A dependent is defined under s. 57 of that Act to include your spouse, former spouse, common-law spouse, parent, grandparent, child, grandchild, brother, and sister. A dependant may have to prove that they are a dependent and entitled to financial support under s. 58(1) in court. If the court decides that the person is a dependant and that person can show a need for financial support, then it may order that a certain amount of money be paid to them out of the estate.

If you think that you may be entitled to more from an estate than the amount provided for in a Will, or if you need to determine the rights of others when preparing your Will, consult with a lawyer (by making a post on Dynamic Lawyers).

written by admin \\ tags: adequate provision, brampton, brother and sister, common law spouse, dependant, dependents, educational purposes, legal advice, ontario lawyers, professional assistance, regard, succession law reform act, toronto, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a Will or International Will, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will or International Will.

Along with other provinces and countries, Ontario is a contracting party to the Convention Providing a Uniform Law on the Form of an International Will.  This means that, if a Will is made in the form of an International Will (i.e. in accordance with the form prescribed by that Convention in the Schedule and Annex in the Succession Law Reform Act) concerning two or more contracting parties, then the Will is valid as between those parties irrespective of where it was made, the location of the assets and of the nationality, domicile, or residence of the testator. At present, some the contracting parties to the Convention include: Belgium, most Canadian provinces (Manitoba, Newfoundland, Alberta, Saskatchewan, Prince Edward Island, New Brunswick, and Nova Scotia), Cyprus, Ecuador, France, Italy, Iran, Portugal, the Russian Federation, the United Kingdom, and the United States of America.  An important difference with an International Will is the requirement that an authorized person (in Ontario, this means a lawyer) attach to the Will a Certificate establishing that the obligations of the Convention have been complied with.

written by admin \\ tags: brampton, canadian provinces, domicile, educational purposes, legal advice, mississauga, nationality, new brunswick, ontario lawyers, prince edward island, professional assistance, russian federation, succession law reform act, testator, uniform law, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to your offer or agreement of purchase and sale (or wanting to back out of one) you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you with your offer or agreement of purchase and sale.

In this blog, I’ll be discussing what happens if you change your mind after singing an offer or purchase agreement?

Once an offer or counteroffer has been made, it cannot be withdrawn unless there is a time limit on the offer or counteroffer which passes without being accepted.

An Agreement of Purchase and Sale may also be terminated if it becomes impossible to perform through no fault of either party (lawyers say such a contract is “frustrated”).  An example is property destroyed in a flood or a fire before the buyer has taken possession.

If there is no relevant termination clause in the Agreement of Purchase and Sale, a party cannot claim frustration if the supervening event resulted from a voluntary act of the buyer or seller.  Furthermore, frustration is not available if the parties contemplated the possibility of the supervening event arising during the term of the agreement and provided for in the agreement. In Dinicola v. Huang & Danczkay Properties, 2 R.P.R. (3d) 267, a condominium developer failed to develop 3 buildings and returned all deposits and down payments. The condominium unit purchasers, however, sued for breach of contract. In its defence, the developer argued that the municipal council’s refusal to approve the site plan for the development of the buildings frustrated its agreements with the purchasers. The Ontario Court of Justice (General Division) rejected that defence and found the developer liable to pay damages assessed at $4.9-million.  The court reasoned that frustration was not available as a defence because the developer and the purchasers had contemplated the possibility of the municipal council’s refusal at the time the purchase and sale agreements were entered into. That possibility was also provided for in the agreements.  Frustration was also not available because the developer relied on its own refusal to negotiate terms of the approval with the municipality to excuse itself from liability under the agreements.

Purchasers of new condominium units in Ontario have a cooling-off period of 10 days to back out of their purchase agreements.

Once the offer or counteroffer has been formally accepted, the buyer and seller are bound legally by its terms. If you walk away from a deal you may not only lose your deposit, but may also be liable for any damages suffered by the other party, such as the lost opportunity to sell to someone else, expenses arising from a delayed move, or the seller’s loss of deposit on another home intended for purchase. The legal remedy, called “specific performance” (making you complete the purchase), is an unlikely event, but a court could still hold you responsible for the entire purchase price, plus expenses and court costs.

written by admin \\ tags: brampton, breach of contract, condominium unit, counteroffer, court of justice, dinicola, down payments, educational purposes, legal advice, mississauga, ontario court of justice, ontario lawyers, party lawyers, professional assistance, termination clause, time limit, voluntary act

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to reviewing your agreement of purchase and sale, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you review your agreement of purchase and sale.

As a follow up to my previous blog about Agreements of Purchase and Sale (for residential properties) – which dealt with the Information Section, Price, Deposit, Irrevocability Clause, and Completion Clause – and my other blog about Fixtures and Chattels, Rental Items and Title Search, I will continue with discussion highlighting certain parts of OREA’s standard form.  In this blog, I’ll be talking about inspection rights, price adjustments, and the Ontario Family Law Act.

Inspection Rights
The standard clause (section 13) of OREA’s Agreement of Purchase and Sale says that the Buyer has had the opportunity to inspect the property and understands that they will “not be obtaining a property inspection” unless otherwise specified in the agreement.  This is where a good Realtor will include a provision in the additional terms and conditions requiring a home inspection be done and a report provided to the satisfaction of the buyer. Here’s a typical clause that I’ve come across:

“This offer is conditional upon the inspection of the subject property by a home inspector at the Buyer’s own expense and the obtaining of a report satisfactory to the Buyer in the Buyer’s sole and absolute discretion.  Unless the Buyer gives notice in writing delivered to the Seller within 5 (five) banking days after acceptance that this condition is fulfilled, this offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction.  The Seller agrees to cooperate in providing access to the property for the purpose of this inspection. This condition is included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller within the time period stated herein.”

Price Adjustments
At the day of completion, there will be additional charges or refunds that need to be applied to the purchase price.  These charges and refunds include: realty taxes, private and public utility charges, rents, mortgage interests, local improvement rates, unmetered cost of fuel, etc.  The buyer is only supposed to assume responsibility for these types of things after closing (i.e. completion of the sale).  If the seller, for example, paid realty taxes in advance, then they would be entitled to a credit in the purchase price.

Ontario Family Law Act
Situations may arise when the vendor has a spouse (e.g. common law or married) that has an interest in the property.  To be clear, a provision was included in OREA’s standard form Agreement of Purchase and Sale to warrant that no spouse – other than spouses who execute the Agreement of Purchase – have an interest or claim to the property.

written by admin \\ tags: agreement of purchase and sale, chattels, educational purposes, home inspection, home inspector, ontario family law act, price adjustments, professional assistance, residential properties, section 13

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to drafting, reviewing, interpreting or resolving disputes concerning partnership and limited partnership agreements, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Mississauga, Brampton, and other Ontario business lawyers registered on the website who can answer your questions or help you with your partnership and limited partnership agreements.  I should know – I’m one of them and you can contact me directly.

Following up on my recent blogs about Ontario limited partnerships, what they’re all about, how a limited partner can lose their limited partner status, and how a limited partnership is not a separate legal person, I thought I would blog about an important yet often overlooked aspect of using limited partnerships to raise money for an investment: complying with securities laws.

Ontario limited partnerships are generally used for tax planning purposes.  A group of persons want to start a business.  They realize that the business will generate losses in the first few years (which is normal when you’re first starting out).  They want to offset their income with those losses.  If they use a corporation, the losses will get trapped in the corporation.  The corporation can carry them forward (to a certain extent), but cannot transfer those losses through dividends to the shareholders.  Since a limited partnership is simply a flow-through structure and not a separate legal entity, its losses can be attributed to its partners.  So, to recap: Ontario limited partnerships are generally used for tax purposes (since they offer no advantages to mitigate liability vis-a-vis a corporation).

Now, we move on to securities laws implications.

When limited partnerships are being established, it’s not just a matter of complying with the provincial partnerships acts, the Income Tax Act, and any partnership agreement that may exist between the partners.  If the limited partnership is going to be offering “securities” (as defined under the Ontario Securities Act) through the offering of limited partnership interests that fall under that definition, then the limited partnership will need to comply with dealer registration, prospectus requirements, and other onerous obligations before it is allowed to offer those securities.  The limited partnership can, however, avoid complying with those securities law obligations if it qualifies for an exemption.  You should definitely consult with a business lawyer familiar with these exemptions BEFORE offering limited partnership interests. Also keep in mind that you’ll need to comply in ALL of the jurisdictions you’re proposing to offer securities.  So you’ll need to consult with lawyers about compliance in those jurisdictions (and the rules are not necessarily the same wherever you go!).  All too often, parties don’t think about complying with securities laws until it’s too late.  Then it’s only down hill from there: Ontario Securities Act proceedings which could result in worse things (e.g. civil litigation, bankruptcy, divorce, etc.).  OUCH!!!

written by admin \\ tags: business lawyers, educational purposes, first few years, legal advice, limited partnership agreements, limited partnerships, ontario business, partner status, professional assistance, securities laws, separate legal entity, shareholders, tax planning, tax purposes

Please keep in mind that this is not legal advice.  The information provided herein is for educational purposes only. If you would like to get in touch with a lawyer to help you draft, interpret, negotiate or resolve a dispute about a shareholder agreement or unanimous shareholder agreement, then you are encouraged to seek a professional (e.g. make a post on Dynamic Lawyers).  We have Ontario lawyers who can assist you in this regard (I would know, I’m one of them!). If you’d like, you can contact me directly.

As a follow up to some previous blogs I had written a few months about about unanimous shareholder agreements  – an introduction and a basic template – I though it would be worthwhile to discuss some of the nuances involved in drafting one of these agreements.  Specifically, I’ll be talking about non-competition clauses, dispute resolution clauses, and the general terms that are typically found in a unanimous shareholders agreement.

Non-Compete Clauses
I’ve previously discussed non-compete clauses and agreements generally (an introduction, the justification test in Ontario, and being too vague to enforce).  With respect to shareholder agreements, it’s typical to find a non-compete clause.  This clause will basically provide that each shareholder agrees with the other shareholders and the corporation not to compete (directly, indirectly, alone, in partnership, etc.) for a set period of time – namely, during the term of the Shareholder Agreement (i.e. until it is terminated) or until the Shareholder ceases to be a Shareholder and for a number of months or years thereafter.  “Competing” is generally defined to include carrying on business that is competitive with the corporation’s Business (a defined term in the Shareholder Agreement), soliciting the Corporation’s stakeholders (e.g. employees, suppliers, customers, etc.), and doing anything that would negative impact and affect the Business of the Corporation.

Dispute Resolution Clauses
If you want to avoid the cost, time, headache, and uncertainty of litigating disputes in respect of the Shareholder Agreement, you might want to include a dispute resolution clause.  These clauses can say something like: the parties agree that any and all disputes and questions that arise between any of the parties in connection with the Shareholder Agreement (or construction or interpretation or application thereof), any section of the Shareholder Agreement, or any document, act, omission, etc. related to the Shareholder Agreement shall be resolved by mediation or arbitration (or perhaps mediation fist, and then arbitration).  In either case, you should specify how many mediator(s) and arbitrator(s) will be appointed, who will pay for them, where the mediation or arbitration will be held, how the procedure will be determined (by the parties or by the mediator or arbitrator?) and whether an appeal is available from the decision of the arbitrator (mediator decisions are generally non-binding).

General Terms
Here are some of the general terms that I’ve typically found in Shareholder Agreements (and other agreements for that matter):

• Notice (how do the parties give notice under the agreement for things like termination).
• Further Assurance (sometimes, you need the parties to the agreement to give additional representations and warranties such that they say they have all the requisite power and authority to do everything they’ve promised to do under the Agreement and that they will do those things as promised).
• Assignment (e.g. is this to be done by the parties having to consent in writing?).
• Survival of terms (i.e. if a term is found by a court to be void, should the rest of the agreement survive?).
• Governing Law (which jurisdiction governs the interpretation and enforcement of the agreement?).
• Amendment (how is this to be done?).
• Entire Agreement (i.e. this agreement supersedes all other agreements – whether oral or written – relating to the same subject matters in the agreement)
• Waiver (e.g. no failure or delay of a party to enforce or exercise its rights under the agreement constitutes a waiver, etc.).
• Interpretation (singular vs. plural; masculine vs. feminine, section headings, etc.)
• Power of Attorney (shareholders sometimes require that, if any shareholder neglects or refuses or is unable to execute or deliver any document required to be delivered, then they shall be deemed to have appointed the Corporation as his or her lawyer attorney and agent for such purposes).
• Independent Legal Advice (an acknowledgment by the parties that they have been told to and have received independent legal advice concerning the nature and substance of the Shareholder Agreement).
• Severability (in case one provision is struck down and rendered invalid doesn’t mean the rest of the agreement is).
• Currency (in which currency do dollar amounts referenced in the Shareholder Agreement pertain to?).

written by admin \\ tags: dispute resolution, educational purposes, legal advice, negative impact, non compete clause, non compete clauses, nuances, shareholder agreement, shareholder agreements, unanimous shareholders agreement

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to buying, selling or renting real estate, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario real estate lawyers registered to help you with your purchase, sale, and lease of real estate.

In this blog, I’ll be discussing Status Certificates in the context of buying a condo unit.

What are they?
When a buyer makes an offer to purchase a condo unit, they will typically include a provision for the seller to provide something called a “Status Certificate”.  This is a current report about the status of the condominium corporation generally and the unit specifically.

What’s included in a Status Certificate?
Under s. 76 of the Condominium Act, 1998, a condominium corporation must give to each person who requests it a status certificate in a prescribed form that specifies the date on which it was made and which contains (among other things):

• a statement of the common expenses – including arrears and increases – for the unit;
• assessments made by the board to increase the contribution to the reserve fund and the reason for the assessments;
• the address for service of the corporation;
• the names and address for service of the directors and officers of the corporation;
• a copy of the current declaration, by-laws and rules;
• a statement of all outstanding judgments against the corporation and the status of all legal actions to which the corporation is a party;
• etc.

Under s. 15 of the Regulations, condominium corporations are required to keep copies of the status certificates that it issues under s. 76 of the Act for a period of 10 years.

What’s the benefit of having the Status Certificate?
Basically, the status certificate provides valuable insight into the financial and governance health of the condominium corporation.  It can tell you trends in the receipt and expenditure of funds, the current year’s budget, the last annual audited financial statements and the auditor’s report on the statements, and the amount of the reserve funds available.  It also tells you about legal proceedings and claims made against the condominium corporation.  Finally, by examining the corporate governance documents (e.g. by-laws, director meeting minutes, rules, etc.), you’ll have a better glimpse into the inner workings (and challenges) faced by the corporation’s board of the directors.  The corporation has an obligation, within a reasonable time, to provide copies of the agreements to a person examining them, if the person so requests and pays a reasonable photocopy and administration fee to the condominium corporation.

How much does it cost?
Pursuant to the Act and the Regulations, a condominium corporation can charge the person making the request for a Status Certificate up to $100, inclusive of all applicable taxes: s. 18(1) of the Regulations.

What Form Does it Take?
Status Certificates must be in prepared using Form 13 under the Regulations.

Sample Clause in Offer
Here’s an example of a Status Certificate that I’ve come across:

“This Offer is conditional upon the Buyer’s Lawyer reviewing the Status Certificate and Attachments and finding the Status Certificate and Attachments satisfactory in the Buyer’s Lawyer’s sole and absolute discretion. The Seller agrees to request, at the Seller’s expense, the Status Certificate and Attachments within 10 days after acceptance of this Offer. Unless the buyer gives notice in writing to the Seller not later than 11:59p.m. on the third day [Excluding Saturdays, Sundays and Statutory Holidays] following receipt by the Buyer of the Status Certificate and attachments, that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction.”

Remember: if you’d like a lawyer to review the Status Certificate and advise you on the inner workings and financial status of the condominium corporation’s progress, make a post on Dynamic Lawyers.

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